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FUNDED Articles

Update: Funding for COPS Hiring Program Now Available

Aug1

Written by:Grants Office, LLCThursday, August 1, 2019

By Ashley Schultz

Within the first week of taking office in January 2017, President Trump issued an executive order directing government agencies to “to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens” (Executive Order No. 13768, 2017). This call to order was specifically targeted at sanctuary cities, threatening that any jurisdiction found to willfully refuse this directive would be cut off from future federal funding – including formula and competitive grant programs.

The announcement came of little surprise, particularly considering Trump’s hardline stance on illegal immigration while on the campaign trail. The executive order requires agencies to comply with 8 USC § 1371, an existing federal statute that prohibits state and local governments from passing laws or enacting policies that restrict the sharing of information with Department of Homeland Security personnel about the citizenship/immigration status of an individual. This law lies at the crux of the dispute between the federal government and sanctuary cities, as the latter often take deliberate action to limit their collaboration with the enforcement of immigration law in an effort to bolster trust and cooperation within their local communities.

The interpretation and subsequent implementation of 8 USC § 1371 has since filled the pages of trade periodicals like the one you’re reading now. The ultimate fate of Trump’s Executive Order will likely not be decided for several years – particularly given the stalwart resolution of both sides and the continued stalemate in Congress that impedes legislative action on the matter. For now, however, we want to take a pause to examine how this conflict has impacted grant funding opportunities for criminal justice agencies across this US. This moment of review is particularly timely as the Trump administration enjoys a recent victory in the court case City of Los Angeles v. Barr wherein the Ninth Circuit Court of Appeals ruled in favor of the Department of Justice and lifted the nationwide injunction on the COPS Hiring Program (CHP) grant.

Outline of legal disputes in City of Los Angeles v. Barr

The origin of this legal dispute lies with the City of Los Angeles’s 2017 application to the COPS Hiring Program.This popular grant offers funding for law enforcement agencies to hire and/or rehire officers in an effort to increase their community policing capacity and crime prevention efforts. In the 2017 grant cycle, the COPS Office received more requests for funding than it was able to satisfy ($410M requested; $98.5M available) and was thus forced to deny nearly 85% of applications. One of these denied applicants was the City of Los Angeles, who claimed their proposal denial was directly related to an unfair and unlawful distribution of priority consideration (think: bonus points) within the grant itself.

The 2017 COPS Hiring Program application scored applicants based on fiscal need (20%), crime (30%), and level of effort dedicated to community policing (50%). Agencies could receive preferential consideration if they expanded the scope of their project to include one of three new program categories: (1) violent crime; (2) homeland security; or (3) illegal immigration. Agencies were given the option to receive even more favor by submitting a “Certification of Illegal Immigration Cooperation” in which they agreed to conditions outlined in Executive Order No. 13768 – including:

(1) Permitting US Department of Homeland Security (DHS) personnel into any detention facility in order to question an individual about his or her citizenship status; and

(2) Providing notice to DHS personnel before releasing an individual of interest due to his or her citizenship status.

It’s important to note that CHP applicants could opt to pursue one, two, or none of these choices. An exact scoring breakdown was not provided as an indication of how much of a boost any single action would provide for an applicant, but it can be assumed that including one or two of these items would give an applicant a helpful leg up in the review process – making their proposal more likely to be selected than others. Given its status as a sanctuary city and history of speaking out against 8 USC § 1371, the City of Los Angeles did not request consideration for any bonus section, opting to instead focus their application on “building trust and respect” and declining to submit a certification.

In the resulting lawsuit, the City alleged their denied CHP proposal was placed at a competitive disadvantage due to their position on immigration. The City’s case was affirmed by an area court, but the decision was swiftly appealed by the Department of Justice. The resulting legal battle stretched for two federal fiscal years – causing the 2018 and 2019 CHP program cycles to be delayed seemingly indefinitely.

Outcome of City of Los Angeles v. Barr in the courts – so far.

On July 12, 2019, Ninth Circuit Court of Appeals ruled in favor of the Department of Justice – affirming that that COPS Office did not exceed their statutory authority by granting extra consideration to applicants who (1) chose to focus their CHP projects on illegal immigration; and/or (2) submitted a Certification of Illegal Immigrant Cooperation (City of Los Angeles v. Barr 18-5559, 2018). Again, the descriptions and debates of this legal decision will likely fill pages of trade journals in the legal field for months – if not years – to come. For our part though, we’ll highlight what this decision means for future iterations of the CHP grant as well as other federal programs (e.g. Justice Assistance Grant) that are still caught in the crosshairs of battle between sanctuary cities and the Trump administration.

In City of Los Angeles v. Barr, the court determined that the COPS Office could legally impose conditions on grant recipients when choosing where to allocate funds in a competitive program. In this instance, they deemed the bonus was a “financial inducement,” not a coercive act. Much like with any other publicly funded grant opportunity featuring competitive priorities, CHP applicants were free to choose from one of three project focus areas – two of which did not address illegal immigration. The defendants argued that the City of Los Angeles could have selected one of the other competitive funding priorities (violent crime or homeland security) without sacrificing its position as a sanctuary city. What’s more, the court noted that numerous applicants received CHP funding in 2017 without seeking priority consideration through a special project or a Certification of Illegal Immigration Cooperation.

The court also refuted the City’s claim that illegal immigration is “unrelated” to the central tenets of the COPS Hiring Program. The grant itself is intended to improve public safety in US communities by increasing the number of law enforcement officers in a given area. Citing recent acknowledgement of such matters in a Supreme Court, the circuit court asserted that illegal immigration presents a “public safety issue” and is therefore a reasonable focus area for CHP grant applicants. “Cooperation relating to enforcement of federal immigration law,” they note, “is in pursuit of the general welfare, and meets the low bar of being germane to the federal interest in providing the funding to address crime and disorder problems” (City of Los Angeles v. Barr 18-5559, 2018).

Of note is that the Ninth Circuit’s decision on both of these matters is not without precedent in previous conflicts over federal grant dollars. Earlier courts have ruled in favor of cases of “relatively mild encouragement” – or slight preferential consideration offered for grantees who agree to support a particular federal objective. In the 1987 case of South Dakota v. Dole, for example, the US Department of Transportation (USDOT) threatened to reduce federal highway funding by 5% in states who refused to adopt a minimum drinking age of 21. A similar conflict raged over passage of the Affordable Care Act when Congress threatened to eliminate 100% of Medicaid funding to states who opted out of the new federal healthcare program. This penalty was ultimately shut down by the US court system, claiming the potential loss of hundreds of millions of Medicaid dollars in each state exceeded the established grounds of mild encouragement. Conversely, the USDOT reduction of federal funds by 5% was allowed to stand because the restrictions were not so coercive as to force a compulsive action from a State. This tracks to our instance of Los Angeles and the CHP grant. The Department of Justice offering bonus points to support a priority of the federal government was deemed allowable because applicants were given a chance (i.e. they were not coerced) to accept or deny the conditions in exchange for funding.

In the end, it was ultimately determined the City of Los Angeles was not directly denied CHP funding due to its position on immigration. They simply did not score enough points on the Department of Justice’s rubric to be one of the 179 awarded applicants. The nationwide injunction on the COPS Hiring Program grant was then lifted, effectively allowing funds allocated by Congress in fiscal years 2018 and 2019 to be distributed to new applicants. At the time of writing, no further legal action has been filed by the City or Department of Justice in relation to the City of Los Angeles v. Barr.

Current and Future Effects on Federal Grant Funding

Less than a week after the final ruling of was filed, the COPS Office began preparations to open applications for the next COPS Hiring Program competition. Interested agencies can anticipate seeing two full years’ worth of funding (2018 and 2019 allocations) combined into the same solicitation – potentially offering upwards of $200M for US law enforcement agencies to hire and/or rehire officers. It is unclear at this point if the COPS Office plans to include similar priority considerations for this new funding cycle as they had in 2017. As it currently stands, however, the courts have determined that any repeat attempt to give preference for applicants that address illegal immigration will be permitted.

It’s important to note, though, this ruling does not impact the 9+ cases currently working their way through lower courts related to funding conditions placed on the Edward Byrne Memorial Justice Assistance (JAG) program. The JAG grant program distributes $260M annually to criminal justice agencies across the US. The 2017 and 2018 JAG program guidance required applicants to increase information sharing between federal, state, and local law enforcement – citing a need for “federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe” (USDOJ Press Release 17-826, 2017). To this point, all 2017 and 2018 JAG applicants have been required to sign certifications and assurances that guaranteed their participation in this initiative. If an applicant submitted their JAG application without all proper signatures, their award was withheld until all paperwork was properly executed. As of now, it is expected that the 2019 JAG competition will be the same.

These legal conflicts over JAG funding are more complicated and – arguably – have a larger potential impact, pending the courts’ decisions. For one, the JAG program is distributed as a combination of formula and competitive funding. Those law enforcement agencies who receive JAG formula funding each year plan on being awarded a predictable, consistent amount of dollars for use towards their annual budget. Experiencing an abrupt loss in that income can have far-ranging impacts on a department’s ability to provide service across its jurisdiction – including adequate staffing levels, proper maintenance of technology and equipment for officers, and community safety events that connect a law enforcement agency with surrounding residents.

What’s more, the nature of placing requirements on a formula grant – rather than a competitive one – appears to be outside the recent court decision on the competitive CHP grant. The inclusion of signed certifications and assurances to comply with 8 U.S.C. § 1373 in the 2017 and 2018 JAG applications was not offered to agencies as priority consideration (i.e. extra credit for when the application is scored). It was set as a requirement. As a result, some jurisdictions are refusing to collect JAG funding that was directly allocated to them.

The City of Los Angeles, for example, was eligible for $1,822,801 in formula JAG funding for 2018. Given Los Angeles’ status as a sanctuary city, they felt signing JAG assurances and certifications to work with immigration authorities would force it to “abandon its longstanding law enforcement policies, intended to improve cooperation between immigrant residents and municipal police" (City of Los Angeles v. Sessions, 2018). As such, the City sued once they became ineligible for JAG funding. The City of Alameda also opted out of more than $10,000 in 2017 and 2018 because the new requirements were in direct conflict with their sanctuary city policy passed in January 2017 (Hegarty 2018). Los Angeles, Alameda, and others are likely waiting for official decision(s) from the 9+ court cases currently in progress before finding a clear path forward in receiving and spending JAG grant dollars.

While we wait for that moment, public safety grant funding timelines have experienced significant delays. The Department of Justice is still processing 2017 and 2018 JAG awards as a result of a temporary stay issued by the Seventh Circuit Court. To date, only 918 of the anticipated 1500 awards (61%) have been distributed for 2017 funding. Even fewer (56%) have been awarded from the 2018 funding bucket. For communities who planned on these once-reliable funds, purchase of greatly needed equipment has been delayed and future projects aimed at improving community safety have been shelved.

Last, but certainly not least, is the overall lack of any significant updates made to the public for 2019 JAG funding cycle. At the time of writing, the Department has yet to release new applications to local jurisdictions (e.g. for Los Angeles to receive its anticipated $1.82M), a process which has historically occurred in the May or June each year. This means that all criminal justice agencies – even those who are prepared to comply with the new set requirements – are experiencing a significant lag in critical grant funding for public safety efforts. More waits to be seen on how such conflict will resolve itself both in the courts and on a national scale.

2. The Office of Community Oriented Policing Services (COPS Office) is one of three main grant-making branches within the Department of Justice. In addition to hosting the COPS Hiring Program each year, the agency distributes funding for the School Violence Prevention Program (SVPP), Community Policing Development (CPD) Program, and Coordinated Tribal Assistance Solicitation (CTAS).

3. More than 30% of JAG funding is distributed via formula grants for medium- to large-sized criminal justice agencies across the US. According to a 2016 report from the DoJ, 1500+ local governments are eligible for these formula awards. The five governments eligible to receive the largest awards were New York City ($4.3 million), Chicago ($2.1 million), Houston ($1.7 million), Philadelphia ($1.7 million), and Los Angeles ($1.4 million).